Nos. 19-251 & 19-255

In the Supreme Court of the United States __________

AMERICANS FOR PROSPERITY FOUNDATION,

Petitioner,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA, Respondent.

__________

THOMAS MORE LAW CENTER,

Petitioner,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA, Respondent.

__________

On Petitions for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit __________

BRIEF OF THE CATO INSTITUTE,

COMMITTEE FOR JUSTICE, AND

TEXAS CHARTER SCHOOLS ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF PETITIONERS __________

Curt Levey

COMMITTEE FOR JUSTICE

1629 K St., NW, Suite 300 Washington, D.C. 20006

(202) 270-7748

clevey@committeeforjus-tice.org

September 25, 2019

Ilya Shapiro

Counsel of Record

Trevor Burrus CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001 (202) 842-0200

ishapiro@cato.org

tburrus@cato.org

i

QUESTION PRESENTED

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958), and its progeny held that courts should apply narrow tailoring to violations of the freedom of associ-

ation. Has that requirement been overruled such that

the right to associate privately does not enjoy the strong protective standard that applies to other First

Amendment rights, which this Court has held requires

narrow tailoring regardless of the level of scrutiny?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................... i

TABLE OF AUTHORITIES .................................. iv

INTEREST OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT ................................ 2

REASONS FOR GRANTING THE PETITION .... 3

I. NAACP V. ALABAMA AND ITS PROGENY

REQUIRE COURTS TO ENSURE

NARROW TAILORING WHEN

ASSESSING A VIOLATION OF THE

FREEDOM OF ASSOCIATION ....................... 3

II. BUCKLEY V. VALEO AND SUBSEQUENT

ELECTORAL CASES DID NOT

ELIMINATE THE NARROW-TAILORING

REQUIREMENT ............................................... 9

A. Buckley Reaffirmed NAACP v. Alabama’s

“Strict Test” of Exacting Scrutiny with

Narrow Tailoring ....................................... 11

B. The Court Continued to Apply Exacting

Scrutiny with Narrow Tailoring in

Both Associational and Non-

Associational First Amendment

Contexts after Buckley .............................. 12

C. Later Cases Applying Buckley’s

Exacting Scrutiny to Disclosure

Requirements in the Electoral Context

Have Not Eliminated the Narrow

Tailoring Requirement .............................. 15

iii

III. IN POLARIZED POLITICAL TIMES, IT IS

VITAL THAT THE COURT CONTINUE TO

REQUIRE THAT COMPELLED

DISCLOSURE BE NARROWLY

TAILORED TO A COMPELLING

GOVERNMENT INTEREST .......................... 17

CONCLUSION ..................................................... 21

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ams. for Prosperity Found. v. Becerra,

903 F.3d 1000 (9th Cir. 2018) ............................ 9, 15

Ams. for Prosperity Found. v. Harris,

182 F. Supp. 3d 1049 (C.D.C.A. 2016) ............. 18, 19

Bates v. City of Little Rock, 361 U.S. 516 (1960) ..... 4-5

Bd. of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) ............................................ 2, 14

Buckley v. Valeo, 424 U.S. 1 (1976) ................... passim

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 7, 8

Carroll v. President & Comm’rs of Princess Anne,

393 U.S. 175 (1968) .................................................. 8

Christian Legal Soc’y v. Martinez,

561 U.S. 661 (2010) ................................................ 14

Citizens United v. FEC, 558 U.S. 310 (2010) ...... 10, 16

Davis v. FEC, 554 U.S. 724 (2008) ................ 10, 15, 16

De Jonge v. Oregon, 299 U.S. 353 (1937) .................... 5

Doe v. Reed, 561 U.S. 186 (2010) ............................... 10

Elfbrandt v. Russell, 384 U.S. 11 (1966) ..................... 8

Elrod v. Burns, 427 U.S. 347 (1976) .................... 12-13

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ...... 13

Gibson v. Fla. Leg. Investigation Comm.,

372 U.S. 539 (1963) ........................................ 3, 5, 20

In re Primus, 436 U.S. 412 (1978) ............................. 14

Janus v. AFSCME, 138 S. Ct. 2448 (2018) .......... 13-14

v

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012) ....... 14

Kusper v. Pontikes, 414 U.S. 51 (1973) ....................... 9

Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293 (1961) .................................................. 7

Martin v. Struthers, 319 U.S. 141 (1943) ................. 6-7

McCutcheon v. FEC, 572 U.S. 185 (2014) ....... 2, 14, 16

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ................................................ 13

NAACP v. Ala. ex rel. Patterson,

357 U.S. 449 (1958) ........................................ passim

NAACP v. Alabama, 377 U.S. 288 (1964) ................... 8

NAACP v. Button, 371 U.S. 415 (1963) ....................... 9

Police Dep’t of Chicago v. Mosley,

408 U.S. 92 (1972) .................................................... 8

Riley v. Nat’l Fed’n of Blind, 487 U.S. 781 (1988) .... 13

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............ 14

Saia v. New York; 334 U.S. 558 (1948) ....................... 6

Shelton v. Tucker, 364 U.S. 479 (1960) ................ 5-6, 8

Thomas More Law Ctr. v. Harris,

No. 2:15-cv-03048-R-FFM, 2016 U.S. Dist.

LEXIS 158851 (C.D.C.A. Nov. 16, 2016) .......... 18-19

Other Authorities

#GrabYourWallet, https://grabyourwallet.org .......... 18

Christian Britschgi, “Rep. Joaquin Castro’s Doxxing

of Trump Donors in His District Has Flipped the

Campaign Finance Discourse on its Head,”

Reason, Aug. 7, 2019 .............................................. 18

vi

Mark Brnovich & Ilya Shapiro, “Split Up the

Ninth Circuit—but Not Because It’s Liberal,”

Wall St. J., Jan. 11, 2018 ....................................... 19

Paul Blest, “Here’s How to Find Out Who Donated

Thousands to Trump in Your Area,”

Splinter News, Aug. 7, 2019 .................................. 18

QuickFacts California, U.S. Census Bureau ............ 19

William K. Rashbaum, “At George Soros’s Home,

Pipe Bomb Was Likely Hand-Delivered,

Officials Say,” N.Y Times, Oct. 23, 2018 ............... 18

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was estab-

lished in 1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences and forums, and pub-

lishes the annual Cato Supreme Court Review.

Founded in 2002, the Committee for Justice is a

nonprofit, nonpartisan legal and policy organization

dedicated to promoting the rule of law and preserving

both the Constitution’s limits on government power

and its guarantees of individual liberty including the

freedoms of speech and association.

Texas Charter Schools Association is a non-

profit organization that improves student achieve-

ment in Texas by advocating for and strengthening a

diverse set of high-quality charter schools. It repre-

sents more than 90 percent of public charter school

students in the state, which collectively includes 700

campuses serving 300,000 students. TCSA provides its

members with training, legal services, and updates to

state and federal laws, and discounts on services so

more school funding can be directed to the classroom.

An associated 501(c)(4) advocates at the Texas Capitol

and U.S. Congress on behalf of public charter schools.

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amici

funded its preparation or submission.

2

This case concerns amici because the right of pri-

vate association is essential to liberty and must be pro-

tected against governmental intrusion. Amici are con-

cerned that California’s blanket demand for donor-

identity lists creates a substantial risk of donor har-

assment and poses a serious threat to the rights of free

speech and association by eviscerating the privacy nec-

essary to protect them. Notably, the Cato Institute is

named after the anonymously written Cato’s Letters.

SUMMARY OF ARGUMENT

During the Civil Rights era, state governments at-

tempted to force groups like the NAACP to disclose its

membership lists. This Court stepped in and subjected

such attempts to “the closest scrutiny.” NAACP v. Ala.

ex rel. Patterson, 357 U.S. 449, 460–61 (1958). Viola-

tions of the freedom of association must advance a

compelling state interest and be narrowly tailored to

that interest. The narrow-tailoring requirement pre-

vents the government from needlessly infringing on

constitutional rights when less restrictive means of

achieving its goal are available. The Court requires “‘a

fit that . . . employs not necessarily the least restrictive

means but . . . a means narrowly tailored to achieve

the desired objective,’” which applies “[e]ven when the

Court is not applying strict scrutiny.” McCutcheon v.

FEC, 572 U.S. 185, 218 (2014) (quoting Bd. of Trustees

of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).

This narrow-tailoring minimum reflects decades of

First Amendment precedent in cases concerning both

associational and non-associational rights.

While the Civil Rights era was unique, the right to

private association is still vital. In an era of increasing

political polarization, protecting associational privacy

3

becomes even more important. And when groups or in-

dividuals espouse unpopular or controversial beliefs,

private association is critical. The Court’s precedents

are clear: no matter the level of judicial scrutiny, state

actions that infringe First Amendment freedoms, such

as the compelled disclosure of donor lists, must be nar-

rowly tailored to the governmental interest asserted.

Petitioners Americans for Prosperity (AFP) and

Thomas More Law Center have provided an oppor-

tunity for the Court to reaffirm those precedents and

continue its protection of First Amendment freedoms.

REASONS FOR GRANTING THE PETITION

I. NAACP V. ALABAMA AND ITS PROGENY RE-

QUIRE COURTS TO ENSURE NARROW TAI-

LORING WHEN ASSESSING A VIOLATION

OF THE FREEDOM OF ASSOCIATION

It is “beyond debate” that the freedom of associa-

tion is protected by the First Amendment and is incor-

porated against the states by the Fourteenth Amend-

ment. NAACP, 357 U.S. at 460. This freedom includes

the right to associate anonymously and privately, par-

ticularly in the case of groups espousing minority

views. Id. at 462; Gibson v. Fla. Leg. Investigation

Comm., 372 U.S. 539, 543–44 (1963) (holding that it is

“clear that the guarantee [of freedom of association]

encompasses protection of privacy of association in or-

ganizations such as [the NAACP]”). In protecting the

freedom to associate privately, the Court has treated

membership lists and donor lists “interchangeably.”

Buckley v. Valeo, 424 U.S. 1, 66 (1976).

A constitutionally valid requirement that organiza-

tions disclose their member or donor lists must serve a

4

compelling governmental interest and be narrowly tai-

lored to that interest. NAACP v. Alabama’s “strict

test” is “necessary because compelled disclosure has

the potential for substantially infringing the exercise

of First Amendment rights.” Buckley, 424 U.S. at 66.

Removing any element of that test endangers First

Amendment protections and represents a sharp depar-

ture from this Court’s well-established precedents.

The Court laid strong foundations for protecting as-

sociational privacy in NAACP v. Alabama, subjecting

“state action which may have the effect of curtailing

the freedom to associate” to “the closest scrutiny.” 357

U.S. at 460–61. That case concerned an attempt by Al-

abama to compel the NAACP to produce its state mem-

bership list. Id. at 451–53. The NAACP had shown

that “on past occasions, revelation of the identity of its

rank-and-file members has exposed these members to

economic reprisal, loss of employment, threat of phys-

ical coercion, and other manifestations of public hostil-

ity.” Id. at 462. If Alabama were permitted to force the

NAACP to disclose its entire state membership list, it

was “likely to affect adversely the ability of [the

NAACP] and its members to pursue their collective ef-

fort to foster beliefs” by “induc[ing] members to with-

draw from the [NAACP] and dissuad[ing] others from

joining it.” Id. at 462–63. Justifying such an infringe-

ment would require the “subordinating interest of the

State” in seeking the disclosure to be “compelling,” and

Alabama couldn’t satisfy that test. Id. at 463.

The Court returned to the question of private asso-

ciation two years later in Bates v. City of Little Rock,

which also arose from an attempt to force the NAACP

to disclose its members. Bates v. City of Little Rock,

5

361 U.S. 516, 517–18 (1960). Unlike in NAACP v. Ala-

bama, however, the government purpose asserted—

the power to tax—was deemed “fundamental.” Id. at

524–25. The Court held, however, that the disclosure

requirement must also “bear[] a reasonable relation-

ship to the achievement of the governmental purpose

asserted.” Id. at 525. And, in Gibson v. Fla. Leg. Inves-

tigation Comm., the Court considered whether a state

could compel the production of NAACP membership

lists pursuant to a legislative investigation. 372 U.S.

at 541–42. It held that, when impinging on the free-

dom of political association, the state must “convinc-

ingly show a substantial relation between the infor-

mation sought and a subject of overriding and compel-

ling state interest.” Id. at 546.

Then in Shelton v. Tucker, decided the same year

as Bates, the Court examined an Arkansas law requir-

ing teachers to disclose, annually, any organizations

they had belonged to in the previous five years. 364

U.S. 479, 480–81 (1960). As in NAACP v. Alabama and

Bates, the required disclosures “impair[ed] . . . [the]

right of free association, a right closely allied to free-

dom of speech and a right which, like free speech, lies

at the foundation of a free society.” Shelton, 364 U.S.

at 485–86 (citing De Jonge v. Oregon, 299 U.S. 353, 364

(1937); Bates, 361 U.S. at 522–23). But even when the

governmental purpose is “legitimate and substantial,

that purpose cannot be pursued by means that broadly

stifle fundamental personal liberties when the end can

be more narrowly achieved.” Id. at 488.

In Shelton, the lack of narrow tailoring was the key

problem with the Arkansas law. The requisite “com-

pelling” government purpose was met because the

state had a right to “investigate the competence and

6

fitness of those whom it hires to teach in its schools.”

Id. at 485. Second, unlike NAACP and Bates, where

there was no “substantially relevant correlation be-

tween the governmental interest asserted and the

State’s effort to compel disclosure of the membership

lists,” there was no question that the state’s inquiry

into the organizations a teacher belonged to was “rele-

vant to the fitness and competence of its teachers.” Id.

The problem was with the scope of the state’s in-

quiry. The question was “not whether the State of Ar-

kansas can ask certain of its teachers about all their

organizational relationships,” it was “whether the

State can ask every one of its teachers to disclose every

single organization with which he has been associated

over a five-year period.” Id. at 487–88. The inquiry re-

quired was “completely unlimited,” and it looked into

relationships that had “no possible bearing upon the

teacher’s occupational competence or fitness.” Id. at

488. Given the “breadth of legislative abridgment,” the

law “must be viewed in the light of less drastic means

for achieving the same basic purpose.” Id.

When Shelton was decided in 1960, narrow tailor-

ing was hardly an unknown concept. Indeed, the Shel-

ton Court noted “a series of decisions” in First Amend-

ment cases in which it had instituted the same re-

quirement. Id. Shelton merely recognized that associ-

ational rights are no less protected than the freedoms

of speech or religious exercise. See, e.g. Saia v. New

York; 334 U.S. 558, 560 (1948) (finding that an ordi-

nance forbidding “the use of sound amplification de-

vices except with permission of the Chief of Police” be-

cause it was “not narrowly drawn”); Martin v.

Struthers, 319 U.S. 141, 147 (1943) (striking down as

overbroad an ordinance prohibiting-to-door canvassers

7

and solicitors from “ring[ing] the door bell, sound[ing]

the door knocker,” or taking similar actions to distrib-

ute materials and contrasting it with “similar statutes

of narrower scope” in other states); Cantwell v. Con-

necticut, 310 U.S. 296, 304, 311 (1940) (holding that a

criminal defendant could not be convicted of offenses

relating to his public proselytizing “in the absence of a

statute narrowly drawn to define and punish specific

conduct as constituting a clear and present danger to

a substantial interest of the State,” and that, in the

First Amendment context, a state’s “power to regulate

must be so exercised as not, in attaining a permissible

end, unduly infringe the protected freedom”).

In the nearly two decades between NAACP v. Ala-

bama and Buckley, the Court repeatedly upheld the

NAACP v. Alabama test, including the crucial narrow

tailoring requirement. A year after Shelton, in Louisi-

ana ex rel. Gremillion v. NAACP, the Court again en-

countered an attempt by a state, this time Louisiana,

to compel the NAACP to disclose its membership list.

366 U.S. 293, 294–95 (1961). The Court reiterated that

such a requirement would infringe on associational

rights. Id. at 296. In such cases, “[w]e are in an area

where, as [Shelton] emphasized, any regulation must

be highly selective in order to survive challenge under

the First Amendment.” Id. The Gremillion Court then

quoted Shelton’s prohibition against the pursuit of

even “legitimate” governmental purposes through

“means that broadly stifle fundamental personal liber-

ties when the end can be more narrowly achieved.” Id.

This language from Shelton proved popular. Be-

cause the narrow tailoring requirement applies to all

First Amendment rights, not just associational free-

dom, the Court extensively used Shelton’s language in

8

a variety of First Amendment contexts in the years be-

tween Shelton and Buckley. See, e.g., Police Dep’t of

Chicago v. Mosley, 408 U.S. 92, 101, 101 n.8 (1972)

(holding that “[t]he Equal Protection Clause requires

that statutes affecting First Amendment interests be

narrowly tailored to their legitimate objectives,” and

noting that “[i]n a variety of contexts” the Court has

used the Shelton “more narrowly achieved” language

and “carefully applied [this standard] when First

Amendment interests are involved.”); Carroll v. Presi-

dent & Comm’rs of Princess Anne, 393 U.S. 175, 183–

84 (1968) (“An order issued in the area of First Amend-

ment rights must be couched in the narrowest terms

that will accomplish the pin-pointed objective permit-

ted by constitutional mandate and the essential needs

of public order. In this sensitive field, the State may

not employ ‘means that broadly stifle fundamental

personal liberties when the end can be more narrowly

achieved.’” (quoting Shelton, 364 U.S. at 488));

Elfbrandt v. Russell, 384 U.S. 11, 18–19 (1966) (quot-

ing Shelton’s “more narrowly achieved” language and

holding that “[a] statute touching those protected

rights [of association] must be ‘narrowly drawn to de-

fine and punish specific conduct as constituting a clear

and present danger to a substantial interest of the

State’”) (also quoting Cantwell, 310 U.S. at 311);

NAACP v. Alabama, 377 U.S. 288, 307–08 (1964)

(quoting Shelton’s “more narrowly achieved” language

in a citation supporting the statement that “[t]his

Court has repeatedly held that a governmental pur-

pose to control or prevent activities constitutionally

subject to state regulation may not be achieved by

means which sweep unnecessarily broadly and

thereby invade the area of protected freedoms”).

9

Even in those associational rights cases where the

Court did not use Shelton’s language, the Court unam-

biguously described the narrow tailoring requirement

in other ways. In NAACP v. Button, the Court held

that “[b]ecause First Amendment freedoms need

breathing space to survive, government may regulate

in the area only with narrow specificity.” 371 U.S. 415,

433 (1963).2 Citing Shelton, Gremillion, and similar

cases, the Court further wrote that “[b]road prophylac-

tic rules in the area of free expression are suspect. Pre-

cision of regulation must be the touchstone in an area

so closely touching our most precious freedoms.” Id. at

438. The Court would go on to use Button, or similar

language, in other cases to describe narrow tailoring.

See, e.g., Kusper v. Pontikes, 414 U.S. 51, 58–59 (1973)

(quoting Button regarding “precision of regulation,”

and, citing Shelton, holding that states must opt for

“less drastic way[s] of satisfying its legitimate inter-

ests” instead of means that “broadly stifle[] the exer-

cise of fundamental personal liberties”).

II. BUCKLEY V. VALEO AND SUBSEQUENT

ELECTORAL CASES DID NOT ELIMINATE

THE NARROW-TAILORING REQUIREMENT

The Ninth Circuit stripped NAACP v. Alabama’s

test of its narrow tailoring requirement by relying on

compelled disclosure cases from the election context.

See Ams. for Prosperity Found. v. Becerra, 903 F.3d

1000, 1008–09 (9th Cir. 2018). It relied on the form of

2 Button was a free expression and free association challenge to a

Virginia statute regulating the solicitation of legal business as

applied to the NAACP. The Court concluded that the law violated

the NAACP’s (and its members’) First and Fourteenth Amend-

ment rights. Button, 371 U.S. at 428–29.

10

“exacting scrutiny” applied in two 2010 electoral cases

decided by this Court, Doe v. Reed, 561 U.S. 186 (2010),

and Citizens United v. FEC, 558 U.S. 310 (2010). In

Doe and Citizens United, the Court derived its descrip-

tion of “exacting scrutiny” entirely from Buckley or

later cases that themselves relied on Buckley. Doe, 561

U.S. at 187 (citing Citizens United, 558 U.S. at 366–

67); Davis v. FEC, 554 U.S. 724, 744 (2008) (citing

Buckley, 424 U.S. at 64, 68, 75)); Citizens United, 558

U.S. at 366–67 (citing Buckley, 424 U.S. at 64).

When describing Buckley’s “exacting scrutiny”

standard, neither Doe nor Citizens United explicitly

mention narrow tailoring as an element. The Ninth

Circuit’s interpretation of this omission appears to be

that narrow tailoring is not a requirement of the Buck-

ley “exacting scrutiny” standard used in Doe and Citi-

zens United. Far from supporting this conclusion, how-

ever, Buckley clearly reaffirms the NAACP v. Alabama

test, including its narrow tailoring requirement.

Narrow tailoring was not mentioned in Doe and

Citizens United because it was not necessary, as the

Ninth Circuit dissenters from the denial of en banc re-

view correctly note. App. 83a–84a. Buckley held that

“[b]ecause, ‘in most applications,’ disclosure is ‘the

least restrictive means of curbing the evils of campaign

ignorance and corruption,’ the narrow tailoring prong

of the NAACP v. Alabama test is satisfied” in electoral

compelled disclosure cases. App. 82a. As discussed be-

low, the Court’s post-Buckley rulings reflect this point,

continuing to apply narrow tailoring as a crucial re-

quirement in both associational and non-associational

First Amendment cases.

11

A. Buckley Reaffirmed NAACP v. Alabama’s

“Strict Test” of Exacting Scrutiny with

Narrow Tailoring

The Buckley Court wrote that because compelled

disclosure constitutes a “significant encroachment on

First Amendment rights,” the Court subjects such re-

quirements to the NAACP v. Alabama test, which is

“exacting scrutiny.” Buckley, 424 U.S. at 64. The Court

saw no need to alter NAACP v. Alabama’s “strict test,”

holding that it “is necessary because compelled disclo-

sure has the potential for substantially infringing the

exercise of First Amendment rights.” Id.

The Court then applied NAACP v. Alabama to com-

pelled disclosures in the electoral context. Within this

context, the Court found that “[t]he disclosure require-

ments, as a general matter, directly serve substantial

governmental interests.” Id. at 68. The Court exam-

ined the burden that disclosure placed on individual

rights and held that “disclosure requirements—cer-

tainly in most applications—appear to be the least re-

strictive means of curbing the evils of campaign igno-

rance and corruption that Congress found to exist.” Id.

Buckley discussed the narrow-tailoring rule from

the NAACP v. Alabama line of cases twice more. First,

in the context of contribution limits, the Court ex-

plained that “[e]ven a significant interference with

protected rights of political association may be sus-

tained if the State demonstrates a sufficiently im-

portant interest and employs means closely drawn to

avoid unnecessary abridgement of associational free-

doms.” Id. at 25 (cleaned up).

Second, when addressing a requirement that cer-

tain individuals and groups file disclosures of their

12

campaign contributions, the Court wrote that it “must

apply the same strict standard of scrutiny” as it ap-

plied to the other disclosure requirements because it

implicated the same “right of associational privacy de-

veloped in NAACP v. Alabama.” Id. at 75. Applying

NAACP v. Alabama, the Court upheld this second dis-

closure requirement as constitutional because it

“b[ore] a sufficient relationship to a substantial gov-

ernmental interest,” and because it was “narrowly lim-

ited,” with the burden on associational rights being

“minimally restrictive.” Id. at 81–82 (emphasis added).

Buckley makes clear that narrow tailoring—or “em-

ploy[ing] means closely drawn”—is an essential re-

quirement for a government action that infringes on

associational freedom. In the electoral context ad-

dressed by Buckley, this narrow-tailoring requirement

is satisfied because compelled disclosure is the least

restrictive means of addressing the governmental in-

terest asserted. Outside of that context, however,

Buckley’s holding reaffirms, rather than removes, the

need for narrow tailoring in First Amendment cases.

B. The Court Continued to Apply Exacting

Scrutiny with Narrow Tailoring in Both

Associational and Non-Associational First

Amendment Contexts after Buckley

The Court has clarified that Buckley’s exacting

scrutiny requires narrow tailoring in a variety of First

Amendment contexts. Only five months after Buckley,

the Court held in Elrod v. Burns that “[i]t is firmly es-

tablished that a significant impairment of First

Amendment rights must survive exacting scrutiny,”

under which “the government must employ means

closely drawn to avoid unnecessary abridgment.” 427

13

U.S. 347, 362–63 (1976) (cleaned up). “[T]o survive

constitutional challenge,” the challenged state action

“must further some vital government end by a means

that is least restrictive of freedom of belief and associ-

ation in achieving that end.” Id. at 363 (emphasis

added). The Elrod Court understood that Buckley’s

“closely drawn” standard did not lessen the “strict test”

of NAACP v. Alabama or its narrow tailoring require-

ment, instead holding that narrow tailoring is neces-

sary for any “significant impairment of First Amend-

ment rights.” Id. at 362–63.

Elrod’s interpretation of Buckley’s narrow tailoring

requirement was not an isolated incident. Instead, the

Court has repeatedly held that state action infringing

First Amendment freedoms must be narrowly tailored.

See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 347 (1995) (“When a law burdens core political

speech, we apply ‘exacting scrutiny,’ and we uphold

the restriction only if it is narrowly tailored to serve an

overriding state interest.” (citing First Nat’l Bank v.

Bellotti, 435 U.S. 765, 786 (1978) (emphasis added));

Riley v. Nat’l Fed’n of Blind, 487 U.S. 781 (1988) (find-

ing unconstitutional several regulations on charity

fundraisers because they were not “narrowly tailored”

as required by First Amendment exacting scrutiny).

The Court’s application of Buckley in associational

rights cases in particular has made clear that state ac-

tion infringing associational rights requires narrow

tailoring. As recently as last year, in Janus v. AF-

SCME, the Court held that the First Amendment re-

quires narrow tailoring in the associational freedom

context. 138 S. Ct. 2448 (2018). In Janus, the Court

found that exacting scrutiny, although “a less demand-

ing test than . . . ‘strict’ scrutiny,” requires the law in

14

question to “‘serve a compelling state interest that can-

not be achieved through means significantly less re-

strictive of associational freedoms.’” Id. at 2465 (quot-

ing Knox v. SEIU, Local 1000, 567 U.S. 298 (2012)).

The Court reached similar conclusions in other as-

sociational-rights cases between Buckley and Janus.

See, e.g., Christian Legal Soc’y v. Martinez, 561 U.S.

661 (2010) (applying narrow tailoring to the issue of

whether a public law school violated students’ associ-

ational freedoms when it required student groups to

accept all students as members to access school fund-

ing and facilities); Roberts v. United States Jaycees,

468 U.S. 609, 623 (1984) (holding that state actions in-

fringing on associational freedom must “serve compel-

ling state interests, unrelated to the suppression of

ideas, that cannot be achieved through means signifi-

cantly less restrictive of associational freedoms”); In re

Primus, 436 U.S. 412, 432 (1978) (finding that Buck-

ley’s First Amendment “exacting scrutiny,” including

the requirement that the means employed be “closely

drawn,” is the test for free association cases).

These cases fit with McCutcheon v. FEC, where the

Court held that narrow tailoring is always a require-

ment in First Amendment cases, regardless of the level

of scrutiny. 572 U.S. at 218 (“Even when the Court is

not applying strict scrutiny, we still require ‘a fit that

is not necessarily perfect, but reasonable; that repre-

sents not necessarily the single best disposition but

one whose scope is “in proportion to the interest

served,” . . . that employs not necessarily the least re-

strictive means but . . . a means narrowly tailored to

achieve the desired objective.’”) (quoting Bd. of Trus-

tees of State Univ. of N.Y. at 480). The narrow tailoring

of a law to a government interest is a constitutional

15

floor grounded in decades of the Court’s First Amend-

ment jurisprudence. A form of exacting scrutiny re-

view that lacks this essential safeguard would risk

eroding First Amendment protections across the

board, not only for associational rights.

C. Later Cases Applying Buckley’s Exacting

Scrutiny to Disclosure Requirements in

the Electoral Context Have Not Eliminated

the Narrow Tailoring Requirement

Buckley found that the unique governmental inter-

ests in the electoral context mean that compelled dis-

closure requirements are the least restrictive means of

achieving the governmental purposes asserted. The

exception that Buckley left open was where a party

could show a specific harm to associational rights as a

result of the disclosure, generally in the form of threats

or harassment. Without such a showing, however,

Buckley’s per se rule meant that compelled disclosures

satisfied narrow tailoring.

The court below latched onto the Doe Court’s state-

ment that “[t]o withstand [exacting] scrutiny, ‘the

strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment

rights.’” Ams. for Prosperity Found., 903 F.3d at 1008–

09 (quoting Davis, 554 U.S. at 744). From this lan-

guage, the court developed an entirely novel sliding-

scale test. The upshot of this test, according to the re-

sponse to the dissent from the denial of en banc review,

is that “where the burden . . . on First Amendment

rights is great,” narrow tailoring is more likely to ap-

ply, but where “the actual burden is slight, a weaker

interest and a looser fit will suffice.” App. 103a.

16

The Ninth Circuit misread Doe in two ways. First,

the language in Doe that the lower court relied on orig-

inally comes from a brief, eight-sentence section of Da-

vis. Davis was not trying to break any new ground;

rather, it cited to the section of Buckley where the

Court applied narrow tailoring and determined that

“disclosure requirements . . . appear to be the least re-

strictive means” available. Davis, 554 U.S. at 744 (cit-

ing Buckley, 424 U.S. at 68). The narrow-tailoring rule

that Davis cited to remains the rule. Second, even if

the Ninth Circuit’s test was correct, its application of

that test to compelled disclosure is patently incon-

sistent with this Court’s precedent, which has held

that compelled disclosure represents a “significant en-

croachment[] on First Amendment rights,” not merely

a “slight” burden. Buckley, 424 U.S. at 64.

Doe omitted any explicit discussion of narrow tai-

loring because Buckley had resolved the question.

What Doe left implicit, however, Citizens United ad-

dressed head-on only a few months earlier. There the

Court applied Buckley’s exacting scrutiny and noted

that it had “explained that disclosure is a less restric-

tive alternative to more comprehensive regulations of

speech,” citing its narrow tailoring analysis in Buckley

where it applied the “strict standard of scrutiny” for

“the right of associational privacy developed in

NAACP v. Alabama.” Citizens United, 558 U.S. at 369

(citing Buckley, 424 U.S. at 75–76). Narrow tailoring

is alive and well; it is just a settled question within the

narrow electoral context of Buckley, Citizens United,

and Doe. Moreover, in case Doe muddied the waters,

the Court’s holding in McCutcheon four years later set

the record straight: Narrow tailoring is always re-

quired. McCutcheon, 572 U.S. at 218.

17

III. IN POLARIZED POLITICAL TIMES, IT IS VI-

TAL THAT THE COURT CONTINUE TO RE-

QUIRE THAT COMPELLED DISCLOSURE

BE NARROWLY TAILORED TO A COMPEL-

LING GOVERNMENT INTEREST

Reducing the First Amendment right to associate

and speak anonymously would have profoundly dam-

aging chilling effects in our polarized political climate.

Times of political division bring attempts to silence po-

litical opposition, whether through direct government

action or through threats and harassment. During the

Civil Rights era, the NAACP was the subject of numer-

ous attempts to force the organization to disclose its

membership lists. In many cases, when individuals

were discovered to be members of the NAACP, they

quickly became targets of harassment, threats, and vi-

olence because of their affiliation with the group. By

showing that “on past occasions revelation of the iden-

tity of its rank-and-file members has exposed these

members to economic reprisal, loss of employment,

threat of physical coercion, and other manifestations

of public hostility,” the NAACP demonstrated that

forcing disclosure of their membership lists was “likely

to affect adversely the ability of [the NAACP] and its

members” to engage in their constitutionally-protected

association and advocacy. NAACP, 357 U.S. at 462–63.

Unfortunately, groups advocating any number of

unpopular ideas still face many of the physical, social,

and economic dangers that the NAACP faced for dec-

ades. During the past several years, donors and activ-

ists across the political spectrum have faced death

threats, public harassment, and economic conse-

quences because of their political views and activities.

18

Opponents of President Trump have used the inter-

net to organize boycott companies because they or

their officers donated to the president or other politi-

cians who support him. See, e.g., #GrabYourWallet,

https://grabyourwallet.org. Congressman Joaquin

Castro tweeted a list of San Antonians who donated to

the president, saying it was “[s]ad to see.” Paul Blest,

“Here’s How to Find Out Who Donated Thousands to

Trump in Your Area,” Splinter News, Aug. 7, 2019,

https://bit.ly/2GUEtFj. In 2014, former Mozilla Firefox

CEO Brendan Eich was forced to resign “after it was

revealed that he gave $1,000 in support of a 2008 bal-

lot initiative to ban gay marriage in California.” Chris-

tian Britschgi, “Rep. Joaquin Castro’s Doxxing of

Trump Donors in His District Has Flipped the Cam-

paign Finance Discourse on its Head,” Reason, Aug. 7,

2019, https://bit.ly/2mq8lSs. Most seriously, in Octo-

ber 2018 a pipe bomb was placed in the mailbox of bil-

lionaire philanthropist George Soros, who “donates

frequently to Democratic candidates and progressive

causes” and who is often portrayed as a “villain” by the

far-right because of his donations. William K. Rash-

baum, “At George Soros’s Home, Pipe Bomb Was

Likely Hand-Delivered, Officials Say,” N.Y Times, Oct.

23, 2018, https://nyti.ms/2D2hI1I.

For petitioners, this problem is all too real. Donors

to AFP have received death threats, boycotts, and vio-

lent attacks because of their affiliation with the organ-

ization. Ams. for Prosperity Found. v. Harris, 182 F.

Supp. 3d 1049, 1056 (C.D.C.A. 2016). Similarly,

Thomas More’s positions on controversial issues “have

led to threats, harassing calls, intimidating and ob-

scene emails, and even pornographic letters.” Thomas

More Law Ctr. v. Harris, No. 2:15-cv-03048-R-FFM,

19

2016 U.S. Dist. LEXIS 158851, at *11-15 (C.D.C.A.

Nov. 16, 2016). Thankfully, donors to AFP and Thomas

More have yet to experience as close a call as Mr. So-

ros, and the threats and harassment they have experi-

enced are “not as violent or pervasive” as those experi-

enced by members of the NAACP during the Civil

Rights era.3 Ams for Prosperity Found. v. Harris, 182

F. Supp. at 1056. As the district court correctly noted

in AFP, however, the protections of the First Amend-

ment do not require death threats turn into actual

deaths before courts can enforce them. Id. (“[T]his

Court is not prepared to wait until an AFP opponent

carries out one of the numerous death threats made

against its members.”).

The Ninth Circuit covers “40% of the nation’s land

mass and 20% of its population.” Mark Brnovich & Ilya

Shapiro, “Split Up the Ninth Circuit—but Not Because

It’s Liberal,” Wall St. J., Jan. 11, 2018,

https://on.wsj.com/2sbpNN2. California alone had

nearly 40 million people as of July 2018. QuickFacts

California, U.S. Census Bureau, https://www.cen-

sus.gov/quickfacts/CA (last visited Sep. 22, 2019). Cal-

ifornia’s disclosure requirement and the Ninth Cir-

cuit’s misapplication of First Amendment law is a dan-

gerous combination if allowed to stand. At best, it

means that a fifth of the country will enjoy less First

Amendment protection. At worst, charitable giving

will be chilled nationwide as charities are forced to ei-

ther stop fundraising in California—giving up nearly

40 million potential donors—or disclose their Schedule

B donor lists, which include non-California donors.

3 For some examples of the violence faced by the NAACP, see the

organization’s history webpage. Nation’s Premier Civil Rights Or-

ganization, NAACP, https://bit.ly/2HKy8x8.

20

Given California’s record for repeatedly releasing sen-

sitive Schedule B’s onto the internet and the insuffi-

ciency of current protections, few would blame donors

who felt as though the compelled disclosures were “of

the same order” as a requirement that they wear “iden-

tifying arm-bands,” exposing them to threats, harass-

ment, and boycotts. NAACP, 357 U.S. at 462.

In Gibson, Justice Douglas wrote a concurrence

that has special relevance for this case. “The First

Amendment,” he noted, “mirrors many episodes where

men, harried and harassed by government, sought ref-

uge in their conscience.” 372 U.S. at 574 (Douglas, J.,

concurring). As an example, Justice Douglas identifies

St. Thomas More, the namesake of the Thomas More

Law Center, quoting several lines from A Man for All

Seasons, Robert Bolt’s famous play where More re-

fuses to acquiesce to a demand from the king that goes

against his conscience. Id. at 574–75. Justice Douglas

concludes that “[b]y the First Amendment we have

staked our security on freedom to promote a multiplic-

ity of ideas, to associate at will with kindred spirits,

and to defy governmental intrusion into these pre-

cincts.” Id. at 575–76. Since Gibson, the Court has

steadfastly defended these First Amendment princi-

ples with strong protections like the narrow tailoring

requirement. The Court should continue to do so.

21

CONCLUSION

For the foregoing reasons, and those expressed by

the petitioners, the Court should grant certiorari.

Respectfully submitted,

Curt Levey COMMITTEE FOR JUSTICE

1629 K St., NW, Suite 300

Washington, D.C. 20006 (202) 270-7748

clevey@committeeforjus-

tice.org

Ilya Shapiro Counsel of Record

Trevor Burrus

CATO INSTITUTE 1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200 ishapiro@cato.org

tburrus@cato.org

September 25, 2019